Saturday, June 22, 2013

The "you win some, you lose some" nature of smartphone patent disputes became particularly visible on Thursday, where Apple scored a victory in Japan over one of its most important patents and saw one of its least important patents-in-suit invalidated in Germany. Not only was the case Apple won against Samsung in Japan over the iconic rubber-banding patent strategically more relevant (not in terms of inflicting damage on Samsung's business but because this patent is key to Apple's user experience differentiation) but the most important patent event for Apple this week was a FRAND rate determination trial in Germany, which didn't go well for Google.

There's a widespread misconception among many people hearing, reading and writing about these disputes. It's this notion that all of this only benefits lawyers because wins and losses are pretty evenly distributed. It's a mistake to consider a successful defense a "win" like a successful enforcement of a patent. The dropout rate in all these disputes is high. If (roughly speaking) 80% to 90% of the cases are dismissed or stayed, then even some very successful litigants inevitably appear to come out on the losing end very frequently. But most of the time it just means that some huge global player lost a few million dollars, which is very little in this context. The right approach is to count true wins: successful enforcements. And in that regard, Google's Motorola Mobility has won nothing at all against Microsoft and only a questionable win against Apple over a push notification patent in Germany. Samsung's most significant win is an ITC import ban that doesn't even affect newer iPhones and iPads since those come with Qualcomm chips, presenting a different licensing situation. But Apple and Microsoft have scored a number of true wins in court and have concluded a number of royalty-bearing license deals, and they're going to win a lot more going forward.

The rubber-banding (or, as I like to call it, overscroll bounce) patent is a global winner for Apple. It's not the kind of patent with which you can force someone out of a market, but those who are not allowed to implement it suffer a degradation of the user experience of their devices.

The patent is also being asserted against Samsung in Australia, where a trial just concluded and a ruling is expected to come down in the months ahead.

Also on Thursday, the Munich-based Bundespatentgericht (Federal Patent Court of Germany) struck down a hardware patent Apple asserted against the Motorola Gleam non-Android "dumbphone". Last year the Munich I Regional Court felt that Apple had a strong infringement but weak validity case, and Apple stipulated to a stay of the infringement proceedings. A spokeswoman for the Federal Patent Court yesterday confirmed to me that EP1430380 on a "computing device with dynamic ornamental appearance" (which is from 2002 and not an iPhone patent) was held invalid in the form in which Apple defended it as well as in nine amended versions Apple proposed. Apple can appeal this nullity declaration to the Bundesgerichtshof (Federal Court of Justice). This patent is rather narrow, so I'm not sure if it's worth defending further. Apple has more interesting stuff in its portfolio.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.